Circuit Court of Appeals, Second Circuit.
Albert Ottinger, Atty. Gen. (Wendell P. Brown and Claude T. Dawes, Deputy Attys. Gen., for the State of New York.
John B. Ball, of Poughkeepsie, N. Y., and Charles M. Sheafe, Jr., of New York City, for sundry judgment creditors.
Samuel H. Brown, of Poughkeepsie, N. Y. (Charles M. Sheafe, Jr., of New York City, of counsel), for appellee Central New England Ry. Co.
Before HOUGH, MANTON, and MACK, Circuit Judges.
PER CURIAM.
Upon this record we are not concerned with the ultimate disposition of the realty and personalty funds in the hands of the trustee in bankruptcy, nor with any process of marshaling which may become necessary in adjusting the rights of creditors and lienors.
The sole question before us is whether, having regard to section 219-c (amended by Laws 1919, c. 628, § 11; Laws 1920, c. 640, § 8; Laws 1921, c. 443, § 11; Laws 1922, c. 507, § 7; Laws 1925, c. 321, § 2) and section 219-e (amended by Laws 1921, c. 443, § 13) of the Tax Law of the state of New York, these franchise taxes constituted (although no warrant for collection was ever issued) a lien upon the bankrupt corporation's realty superior to duly docketed judgments, whether such docketing was before or after the assessment of the tax.
We are unable to agree with the decision below, because it seems to us that New York Terminal Co. v. Gaus, 204 N.Y. 512, 98 N.E. 11, conclusively establishes that such tax did become by force of the Tax Law a lien on the taxpayer's realty paramount to all other incumbrances; and Marshall v. New York, 254 U.S. 380, 41 S. Ct. 143, 65 L. Ed. 315, explicitly recognized the binding force of that decision in the courts of the United States. The case last cited loses none of its authority because it was a proceeding in equity, and not in bankruptcy. So far as we are informed, the state has complied with all the requirements of the bankruptcy law in presenting its demand.
*79 The order appealed from is reversed, without costs, in so far as it refused priority to the state of New York, and the matter remanded to the court below, with directions to take further proceedings not inconsistent with this opinion.
